DANIELS: The Supreme Court's 'Religious Freedom' Scam

Last week, the U.S. Supreme Court issued two decisions that the Court’s conservative majority and the larger conservative movement pretended were about “religious freedom.”

In the one case, involving the Hobby Lobby chain of craft stores and the Conestoga Wagon Specialties company, which makes wood cabinets, the majority ruled that a federal law guaranteeing “religious freedom” means family-owned corporations don’t have to provide insurance coverage for contraception under the Affordable Care Act.

That decision, which the Court issued on June 30, seemed to leave in place the law’s provision governing nonprofit organizations in place. The law allowed nonprofit organizations, if they wished, to transfer the delivery of free contraception to others. However, in the second ruling, which the Court handed up on July 3 and specifically involved Illinois’s Wheaton College, a conservative Christian institution, the court majority temporarily exempted it from having to comply at all with the contraception provisions of the law.

Critics of the decisions, which produced extremely sharp dissents from the court’s three female justices, said they have stripped women workers of any guarantees that contraception coverage will automatically be part of their health insurance. That’s because these rulings aren’t about “religious liberty.” They actually have an entirely different purpose: jerry-rigging a legal framework around the efforts of the white Christian right to impose its religious beliefs on other Americans. The Christian Right has been pursuing that goal, of course, for decades. But it’s become clear in recent years that it was losing control on two of its most important issues: women’s reproductive rights, and the rights of gays and lesbians, especially regarding same-sex marriage. So, now they’ve re-cast themselves as “victims” whose “freedom” to adhere to their religious beliefs is being violated. It’s a scam the conservative political movement is pushing in brazen fashion—as exemplified by a strikingly apt word in the Hobby Lobby opinion written by Justice Samuel A. Alito.

That word is “fiction.”

On page 18 of the majority opinion, Alito acknowledges that defining corporations as persons in legal terms is a “fiction,” but asserts that “the purpose of this fiction is to provide protection for human beings … When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of those people.” A moment later, Alito defines “those people” in this way: “And protecting the free-exercise rights of closely-held corporations thus protects the religious liberty of the humans who own and control the companies.”

As Washington Post columnist Dana Milbank pointedly noted two days before the Wheaton College decision, that sentence does not contain any mention of the rights of these corporations’ employees. In other words, in declaring that a family-owned corporation – which, after all, is an artificial entity created in accordance with governmental regulations – can, in effect, take on the religious coloration of “those who own and control” it, the court’s conservative bloc was indulging in another of the “fictions” by which it’s been trying to hold back the expansion of democracy for more than a decade.